Online Gaming and Free Speech: Showdown at the Virtual Corral

Is it fair when a virtual world provider kicks a user off its system? The answer might depend on whether the user broke the rules, or the provider just acted on a whim. How should we balance the rights of game providers to protect their systems against the rights of players who invest significant hours and dollars in their characters? Eric Goldman explains why he thinks the balance tips in favor of the providers.

In the offline world, we've seen this intersection in (among other
situations) U.S. Supreme Court cases addressing private speech at privately
owned company towns and shopping centers.[1] In some cases, the Supreme Court
has said that certain landowners cannot prevent speakers from speaking on their
private property. However, in other cases, the landowner's property rights
have trumped the speaker's right to speak on the property, allowing the
landowner to "censor" the speaker.

The differing results depend on whether the private landowner is
characterized as a "state actor." Constitutional protections such as
the First Amendment restrict the behavior of state actors, which typically
include government entities such as federal, state, or local governments.
However, at times non-government actors can be considered state actors, which
makes the cases confusing. Indeed, private actors have been characterized as
state actors in some cases.

In the online world, the speech/rights dichotomy raises equally complex
issues. Online private actors routinely use their private property (such as
computers and networks) to create virtual spaces designed for speech, although
speaker access is usually controlled by contract. An online provider exercising
its property or contract rights inevitably squelches a speaker's rights.
But despite online providers' capacity to exercise their rights
capriciously, courts so far have unanimously held that private online providers
are not state actors for First Amendment purposes.[2] In one representative
case, AOL could refuse to deliver email messages when a spammer tried to send
spam through AOL's network. In other words, in theory, courts could do
something about providers squelching speech, but have sided with providers
because the Constitution doesn't apply in these cases. But how do we
distinguish between AOL's response to spam (which seems right) and a
virtual world's decision to kick off a user? In both cases, the online
provider can choose, but we're tempted to side with AOL on spam and side
against virtual world providers on everything else. It's that inconsistency
that I'm trying to address here.

The virtual world industry is burgeoning. Millions of users participate in
such complex interactive spaces as EverQuest, Second Life, World of Warcraft,
and The Sims Online. With the emergence of these "virtual worlds," we
must once again consider how we balance a customer's speech against a
virtual world provider's rights to squelch speech. To strike a balance, we
must decide whether virtual worlds are more like physical world company towns or
shopping centers, or are just another category of online providers. Some
commentators, most prominently Professor Jack Balkin of Yale Law School,[3]
believe that virtual worlds are different from the physical world, and have
argued for limits to a virtual world provider's ability to regulate speech
by its participants.

I reject these arguments. I believe that virtual worlds are not
distinguishable from other online providers and that we should not create
special speech rules for virtual worlds. Using a recent incident involving The
Sims Online and Peter Ludlow, let me explain why.

Peter Ludlow and The Sims Online

The Sims Online
is a for-profit subscription-based massively multiplayer online role-playing
game (MMORPG) operated by Electronic Arts ("EA").[4] Peter Ludlow is
a University of Michigan philosophy professor[5] and author of the Alphaville
Herald virtual newspaper,[6] which chronicles in-game developments.

The incident started when Ludlow alleged that The Sims Online participants,
including some teenagers, engaged in "cyber-prostitution" in the game.[7] The term "cyber-prostitution" implied that avatars were engaging
in simulated sex, but the game's architecture limited the
participants' ability to do so.[8] Instead, participants (including some
teenagers) allegedly traded cybersex chat for in-game currency,[9] although
Ludlow picked a fairly inflammatory term to make the point.

Ludlow's claim received some media attention, and Ludlow claims EA
targeted him because this publicity was damaging to EA.[10] EA responded that
Ludlow violated EA's rules by linking from his in-game profile to his
newspaper site. It's a little unclear exactly why this link violated
EA's rules. Some reports say that the link broke the rules because the
Herald site linked to information about how to cheat the game;[11] other
reports say that a rule violation occurred because the Herald site was a
commercial web site.[12] Based on its user agreement, EA probably could have
terminated Ludlow's account without any justification at all,[13] but EA
appears not to have taken that route.

Whatever its reason, EA terminated Ludlow's account in The Sims
Online—giving him the online equivalent of the death penalty. Ludlow
claims that this termination was unjustified and discriminatory because EA
selectively enforced its rule against him and not others.[14]

Since the termination, Ludlow has railed against EA for its censorship. That
is not unusual; many disgruntled customers have found a soapbox in cyberspace.
What is unusual, however, is that Peter Ludlow's story became a cause
célèbre. His termination was covered by the New York
Times,[15] the Boston Globe,[16] CNN,[17] the BBC,[18] and
Salon,[19] and high-profile commentators such as Professor Balkin have
supported his cause.[20]